Messina v. Singh

United States District Court, D. Nevada

September 7, 2017

VICTORIA MESSINA, Plaintiffs,v.MALKIAT SINGH, et al., Defendants.

ORDER (Docket No. 32)

NANCY
J. KOPPE UNITED STATES MAGISTRATE JUDGE

Pending
before the Court is Defendant H Trucking's discovery
motion seeking relief from document requests instructing
production be made by September 7, 2017. Docket No. 32. The
Court ordered that the parties file expedited briefing on the
motion. See Docket No. 36. Plaintiff filed a
response. Docket No. 41. The Court finds a reply unnecessary.
Moreover, the Court finds a hearing unnecessary. See
Local Rule 78-1. For the reasons discussed more fully below,
Defendant's discovery motion is hereby
GRANTED in part.

Document
requests propounded on parties must comply with the
requirements outlined in Rule 34 of the Federal Rules of
Civil Procedure. Pursuant to that rule, “[t]he party to
whom the request is directed must respond in writing within
30 days after being served.” Fed.R.Civ.P. 34(b)(2)(A).
The document requests at issue in this case were served on
Defendant on August 25, 2017, and instructed that production
was to be made by September 7, 2017. See Docket No.
29 at 29, 36. As such, the document requests provided
insufficient time to respond and are therefore improper.

The
fact that a request for production accompanies a deposition
notice does not alter the 30-day response period. To the
contrary, Rule 30 expressly requires that such a document
request comply with Rule 34. See Fed. R. Civ. P.
30(b)(2) (“The notice to a party deponent may be
accompanied by a request under Rule 34 to produce
documents and tangible things at the deposition”
(emphasis added)). As a corollary, “[i]t is well
settled that Fed.R.Civ.P. 30(b)(2) provides that any
deposition notice which is served on a party deponent and
which requests documents to be produced at the deposition
must comply with the thirty-day notice requirement set forth
in Fed.R.Civ.P. 34. . . . A party may not unilaterally
shorten that response period by noticing a deposition and
requesting document production at the deposition”
Schultz v. Olympic Med. Ctr., 2008 WL 3977523, at *2
(W.D. Wash. Aug. 22, 2008).[1]

Moreover,
Plaintiff's stray reference to Rule 45 in the deposition
notice, see Docket No. 29 at 37, does not render the
above timing requirement inapplicable here. As an initial
matter, the request for discovery is not even fashioned as a
Rule 45 “subpoena, ” but rather is fashioned as a
Rule 30 “Notice” of deposition. See
Docket No. 29 at 28; see also Nationstar Mtg., LLC v.
Flamingo Trails No. 7 Landscape Maintenance Assoc., 316
F.R.D. 327, 332-33 (D. Nev. July 28, 2016) (discussing
distinction between subpoenas served on non-parties pursuant
to Rule 45 and deposition notices served on parties pursuant
to Rule 30). Moreover, the provisions in Rule 45 cannot be
used to circumvent the rules applicable to party discovery.
See, e.g., Walters v. City of San Diego,
2016 WL 8458373, at *1 n.1 (S.D. Cal. Oct. 25, 2016)
(“Rule 45 subpoenas should not be used as an end-run
around Rule 34's 30 day period to respond to document
requests” (internal quotations omitted)). Plaintiff has
failed to advance any reasonable argument that a party should
be permitted to circumvent the rules governing party
discovery by merely referencing Rule 45 in her discovery
request. Accepting Plaintiffs argument would render
meaningless the timing requirements established in Rule 34
and incorporated into Rule 30.[2]

For the
above reasons, Defendant's discovery motion is hereby
GRANTED in part. Specifically, Defendant is
not required to respond to the document requests by September
7, 2017. Nonetheless, the Court will order that Defendant
respond to the document requests by the default deadline set
by Rule 34(b)(2)(A). Cf. Schultz, 2008 WL 3977523,
at *2 (the failure to provide 30 days to respond to requests
for production did not, in itself, defeat the discovery
requests completely, and instead responses were required
within the 30-day time-frame established in Rule
34).[3]

IT IS
SO ORDERED.

---------

Notes:

[1] Plaintiff also appears to argue that
the fact that Defendant's Rule 30(b)(6) deponent must be
prepared to testify fully means that it should be required to
respond to documents prior to the deposition. See
Docket No. 41 at 5-7. Plaintiff has identified no rules-based
exception to compliance with Rule 34's 30-day response
period simply because an accompanying deposition is sought
pursuant to Rule 30(b)(6). Moreover, accepting
Plaintiff's position would nullify the 30-day response
period for document production requests accompanying
any Rule 30(b)(6) deposition notice, as the same
logic would apply in any case in which a Rule 30(b)(6)
deposition is sought. The Court is also not persuaded that a
shortened period of time is appropriate given the particular
circumstances of this case. Cf. Fed. R. Civ. P.
34(b)(2)(A) (a shorter response period may be obtained
through stipulation or court order).

[2] Rule 45 governs non-party
discovery. See, e.g., Paws Up Ranch, LLC v. Green,
2013 WL 6184940, at *2 (D. Nev. Nov. 22, 2013). Indeed,
Plaintiff essentially acknowledges as much in her responsive
brief. Docket No. 41 at 3 (in addressing Rule 45, noting that
“[t]he non-party status of the movant [seeking
protection] is a factor to be considered in determining
whether the burden imposed by a subpoena is undue”).
Plaintiff has failed to provide argument or legal authority
explaining that Rule 45 applies to a Rule 30(b)(6) deposition
of a party and an accompanying request for
production served on that party. Regardless of
whether Rule 45 applies to discovery from a party, however,
it is clear that its provisions cannot be used as an
“end-run around the Federal Rules' requirements for
discovery from parties.” Walters, 2016 WL
8458373, at *1 & n.1.

[3] The Court herein addresses only the
deadline by which the response to the document requests must
be served. It expresses no opinion as to whether the document
requests are otherwise proper, and nothing herein prevents
Defendant from responding to the ...

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